Thurling and Comcare (Compensation) - [2023] AATA 4481

Thurling and Comcare (Compensation) [2023] AATA 4481 (3 July 2023)
Division:GENERAL DIVISION
File Number(s): 2018/1010
Re:Bryan Thurling
APPLICANT

AndComcare
RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:3 July 2023
Place:Sydney

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 2 March 2017 and 26 April 2017 are affirmed.
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Senior Member Dr Linda Kirk

CATCHWORDS

WORKERS COMPENSATION – injuries to left and right knees – whether employee is entitled to compensation pursuant to section 14 of the SRC Act – whether the symptoms suffered were separate events – where the Applicant did not sustain an injury during the workplace incident – where knee replacement was not reasonably required in relation to the injury – decisions under review affirmed.
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES

Thurling and Comcare (Compensation) [2021] AATA 752
REASONS FOR DECISION

Senior Member Dr Linda Kirk
3 July 2023

INTRODUCTION

Bryan Thurling (‘the Applicant’) was born in 1956. At all material times he was employed by the Department of Families, Housing, Community Services and Indigenous Affairs (‘FaHCSIA’) at the Office of the Registrar of Indigenous Corporations (‘ORIC’) as an Assistant Manager of Corporate Services.
In 1972, when he was about 16 years of age, the Applicant was involved in a motor vehicle accident, during which he sustained a spinal cord injury. The Applicant suffers from a neurological condition called Brown-Séquard Syndrome (‘BSS’) which causes him to experience incomplete quadriplegia,[1] resulting in abnormal lower limb neurology, including reduced left leg power (but normal sensation), and reduced right leg sensory interpretation, particularly affecting pain and temperature, but normal power.[2]
[1]Exhibit R2, T40, 124.
[2]Exhibit R1, R2, 5.
On 4 September 2007, the Applicant submitted a compensation claim for ‘sprained left knee’ sustained by him on 28 August 2007 when he tripped over a metal door stop at the Jolimont Centre whilst attending a business planning workshop at the Novotel Hotel Civic in Canberra (‘the Jolimont incident’).[3] On the same day, the Applicant signed and submitted a workplace hazard and injury report for ‘sprained left knee’.[4]
[3]Exhibit R2, T7, 19.
[4]Ibid, T8, 34.
On 27 September 2007, Comcare (‘the Respondent’) accepted liability for ‘sprain of other specified sites of knee & leg (left) (knee only)’ (‘the Left Knee Determination’).[5]
[5]Ibid, T13, 39.
On 11 February 2008, the Applicant wrote to the Respondent attaching medical certificates ‘which correctly identifies the injury to my right knee’. He also attached a letter from Dr Bernadette Mackay ‘stating it was my right (sic) that was originally injured.’[6]
[6]Ibid, T19, 53.
On 14 February 2008, the Respondent amended the Applicant’s accepted condition to ‘tear of lateral cartilage or meniscus of knee (right)’ (‘the Right Knee Determination’).[7]
[7]Ibid, T20, 54.
On 17 April 2010, the Applicant injured his right shoulder when he lifted a wheelchair into his car (‘the Wheelchair incident’).[8]
[8]Ibid, T79, 451.
On 3 May 2010, the Applicant submitted a claim for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thurling and Comcare (Compensation)

Details

AGLC: Thurling and Comcare (Compensation) [2023] AATA 4481
Case: [2023] AATA 4481
Decision Date: 3 July 2023

CaseChat Overview and Summary

This matter concerned an application by the Applicant for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) for injuries to his left and right knees. The Applicant sought to establish that he had sustained an injury to his right knee during a workplace incident on 28 August 2007, and that a subsequent knee replacement was reasonably required as a result of that injury. The reviewable decisions under consideration were made by the Respondent, Comcare.

The legal issues before the Tribunal were whether the Applicant's right knee condition constituted an 'injury' for the purposes of section 14 of the SRC Act, and if so, whether the total knee replacement surgery was medical treatment reasonably required in relation to that injury under section 16 of the SRC Act. The Applicant contended that he had suffered an injury to his right knee during the incident, while Comcare argued that the evidence did not support this claim and that any aggravation of an underlying osteoarthritic condition was not caused by the incident.

The Tribunal considered the Applicant's evidence and the medical records, including contemporaneous notes from his General Practitioner, Dr Bate. The Tribunal found that the Applicant did not report any right knee symptoms to Dr Bate in the period immediately following the 28 August 2007 incident, despite multiple attendances for his left knee injury. The Applicant's own evidence suggested that right knee symptoms began approximately two and a half months after the incident, in mid-November 2007. Based on this, the Tribunal was satisfied that the Applicant did not sustain an injury to his right knee during the workplace incident.

Consequently, the Tribunal determined that the total knee replacement surgery performed in November 2009 was not reasonably required in relation to an injury for the purposes of section 16 of the SRC Act. The Tribunal affirmed the reviewable decisions dated 2 March 2017 and 26 April 2017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the Second Review Application the issues to be determined are:1)Is the Applicant's right knee condition an ‘injury’ for the purposes of section 14 of the SRC Act?2) If so, was the total knee replacement medical treatment that was reasonably required in relation to that injury for the purposes of section 16 of the SRC Act?APPLICANT’S EVIDENCE Early right knee symptoms Medicare records before the Tribunal record that on 13 November 1986 a knee diagnostic arthroscopy was performed on the Applicant by Dr William Coyle.[17][17]Exhibit R3, ST118, 763. A Woden Valley Hospital report from November 1989 written by Lesley Hall, Physiotherapist, records that the Applicant presented with right knee and left ankle symptoms and investigations were performed on his right knee:[18]Presenting problem is right knee and left ankle ‘collapsing’, causing patient to be wheelchair bound for one to two days at a time.Collapsing episodesRight knee and left ankle – occur separately. Right knee – (nil) pain, but knee spasm – cannot extend, cannot bear weight through right leg, cannot kneel/crawl.Occurs + or – swelling. Diffusions - drained by Dr Andrew BookerFrequencyKnee > ankle. Varies between quite regular to not so regular. Both began two to two and a half years ago. Each episode lasts one to two days, then is fine. Knee usu occurs when on ‘month off’ bistroMay be associated with kneeling to do gardening (full flexion of the knees), but not necessarily linked with anything in partic.…Extensive investigations have revealed (nil) abnormality eg. arthrogram and arthroscopy right knee.[18]Exhibit R1, R11, 701. In his oral evidence at the hearing, the Applicant told the Tribunal that he does not recall having an arthroscopy of his right knee at this time.[19][19] Transcript of proceedings, 3 March 2023, 100. Another Woden Valley Hospital physiotherapy report dated 23 January 1990 records:Complained of nil problems until 17/1/90 – felt right knee give.18/1/90, swollen, unstable, but not “collapsed”. Left ankle, (pain) increased. Worse after sitting (therefore) better if moving therefore kept goingAvoided wheelchair but first time both knee and ankle have probs (sic) simultaneously.Complained of about average number of episodes of “collapsing” over the past few months.NB: Has not done any weeding in months – too afraid that this will aggravate knee ‘collapse’. A further record dated 26 February 1990 records:Appointment with Dr Farmback. Discussed recent ‘collapsing’ problems.Seems to me that they have decreased in frequency. That lack of kneeling (ie, no gardening) may be influencing decreasing episodes of right knee problems. Mobilisations of left ankle improving status of left ankle. A subsequent record dated 30 April 1990 records:Patient reviewed by myself and Dr Farmback. Complained of one episode only of one day spent in a wheelchair with right knee and ankle and left ankle problems. Kneeling continues to be avoided.Discharged.

Decision

Reasons for decision

The Tribunal further finds that the total knee replacement medical treatment the Applicant received in November 2009 was not reasonably required in relation to an injury for the purposes of section 16 of the SRC Act.DECISION Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 2 March 2017 and 26 April 2017 are affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent contends that the evidence does not support the Applicant’s claim that he suffered a right knee injury in the Jolimont incident.[114] It further contends that there is no evidence available to support a view that the Applicant aggravated his underlying osteoarthritic condition in the Jolimont Incident.[115] The Respondent contends that the available evidence supports the view that the Applicant's right knee injury was not caused by the Jolimont Incident, but rather, the Painting event.[116] To the extent the Applicant alleges that he aggravated an underlying osteoarthritic condition in his right knee in the Jolimont incident, the Respondent contends that this alleged aggravation was also caused by the Painting event.[117][114]Respondent’s Amended Statement of Facts, Issues and Contentions (‘RSFIC’), [4.4].[115]Ibid, [4.5].[116]Ibid, [4.6].[117]Ibid, [4.7].CONSIDERATION AND REASONS The Tribunal has considered the material before it, including the evidence of the Applicant and the expert medical evidence, and the oral submissions of the parties. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case. 1) Did the Applicant suffer a right knee injury on 28 August 2007? The parties agree that the main issue for determination is whether the Applicant suffered a right knee injury in the course of his employment on 28 August 2007.[118][118] Transcript of proceedings, 3 March 2023, 86, 93. The evidence before the Tribunal is that on 28 August 2007, following the Jolimont incident, the Applicant attended his General Practitioner, Dr Bate, and informed him that he had injured his left knee when he fell. Dr Bate’s clinical notes record that the Applicant did not mention that he had noticed symptoms in his right knee on any of the seven occasions between 28 August 2007 and 14 September 2007 when he attended Dr Bate for review of his left knee injury. Dr Bate’s notes do not reference the Applicant’s right knee prior to 13 December 2007, with the exception of the entry on 7 September 2007, where he detailed his findings in relation to the Applicant’s left thigh and knee before noting that there was a comparable degree of laxity of lateral collateral ligaments (LCL) bilaterally. Dr Bate confirmed in a letter to the Respondent dated 8 December 2016 that ‘the relevant clinical notes had been made contemporaneously.’[119] As both Dr Vecchio and Dr Khurana opine in their reports, it is highly unlikely that Dr Bate would have wrongly recorded on seven separate occasions the knee the Applicant reported to have injured during the Jolimont incident. [119]Exhibit R2, T68, 197. At no stage has the Applicant positively asserted that he injured his right knee during the Jolimont incident, despite having the opportunity to do so in his oral statement dated 7 June 2018, in his oral evidence at the EOT hearing, and at the hearing before this Tribunal. His evidence is that he began to notice right knee symptoms ‘a couple months’ after the fall, suggesting that by the end of October 2007 he was experiencing such symptoms. Dr Bate’s clinical notes record that on 13 December 2007, the Applicant reported that he had been experiencing a swollen right knee for a month. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s right knee symptoms commenced in mid-November 2007, being about two and a half months after his fall on 28 August 2007.